Q. Compare and contrast the President’s power to pardon in India and in the USA. Are there any limits to it in both the countries? What are preemptive pardons?

Model Answer:

Article 72 (India) and Article II, Section 2 (USA) empower their respective Presidents to grant pardons, acting as a constitutional safeguard against judicial fallibility and harshness.

1. Comparison & Limitations: India vs. USA

• Executive Discretion: The US President acts independently; the Indian President mandates the binding advice of the Council of Ministers (Article 74).
• Jurisdictional Scope: US pardons apply strictly to federal offences; Indian pardons cover Union laws, court-martials, and all death sentences.
• Impeachment Limits: The US President is explicitly barred from granting pardons in cases of impeachment; India lacks this specific restriction.
• Judicial Review (Limitations): US pardoning power is virtually absolute; Indian pardons are subject to limited judicial review on grounds of arbitrariness or mala fide intent (Epuru Sudhakar v. Govt of AP).

2. Preemptive Pardons

• Definition: Clemency granted before any formal charges are filed or convictions occur, fully shielding the individual from future prosecution.
• Applicability: Exists exclusively in the USA (e.g., Gerald Ford pardoning Richard Nixon). India prohibits preemptive pardons; the power operates only after an offence is legally established.

While the US framework grants sweeping, independent executive discretion, India’s system successfully prevents arbitrary misuse through mandatory cabinet advice and judicial review, reflecting a robust separation of powers.